People of Michigan v. Aiden Michael Wysocki ( 2024 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 15, 2024
Plaintiff-Appellant,
v No. 368411
Newaygo Circuit Court
AIDEN MICHAEL WYSOCKI, LC No. 2023-013163-FC
Defendant-Appellee.
Before: SWARTZLE, P.J., and K. F. KELLY and YOUNG, JJ.
PER CURIAM.
In this interlocutory appeal, defendant was bound over after a preliminary examination on
five counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a) and MCL
750.520b(2)(b), and two counts of second-degree criminal sexual conduct (CSC-II), MCL
750.520c(1)(a) and MCL 750.520c(2)(b). The trial court subsequently granted defendant’s motion
to admit evidence involving a separate incident, purportedly to show that the complainant had a
motive to lie about the allegations against defendant. The prosecutor sought interlocutory review
on this evidentiary issue, which this Court granted. Because the record is not sufficient for our
appellate review, the Court vacates and remands for further proceedings.
In July 2017, when the complainant, MG, was 11 years old, she attended an overnight camp
where defendant was a counselor. Three years later, in September 2020, MG’s mother found text
messages on MG’s phone referring to MG being sexually assaulted at the camp. MG then
disclosed that defendant had sexually assaulted her multiple times. MG’s mother reported the
information to the police. The trial court held a preliminary examination, after which the case was
bound over to the circuit court.
Before trial, defense counsel obtained a copy of a Newaygo County Sheriff’s Office report
about an incident that purportedly occurred in March 2020, when MG was 14 years old. According
to the report, an 18-year-old man, who claimed to be 16 years old, picked up MG at her home
around 1:00 a.m. The two kissed, and then the man started to unzip MG’s pants, but MG stopped
him and ended the encounter. The man immediately complied and was going to drive her home,
but MG’s father arrived and took her home. MG’s mother called the sheriff’s office, and MG
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reported to the deputy sheriff that she went with the man because she had not “been getting a lot
of attention from her father.” The report elaborated on this, “She stated her father tells her he loves
her but she doesn’t even feel like he actually does. She stated she just wanted to get attention from
her dad and she didn’t care whether it was good or bad.”
Defense counsel moved to admit the report as an exception to Michigan’s rape-shield law,
MCL 750.520j. Counsel argued that the conduct described in the report was arguably not covered
by the law, but that even if it was, the conduct showed that MG had a motive to lie, i.e., to get
attention from her father. The trial court held a hearing on the motion, but did not hold an in
camera review of the evidence, stating that both parties were in possession of the report. The trial
court agreed with the prosecutor that the conduct was covered by the rape-shield law, but agreed
with defense counsel that it was “highly relevant . . . as to motive.” The trial court granted
defendant’s motion.
The prosecutor appealed.
This Court reviews for an abuse of discretion a trial court’s determination whether to admit
evidence. See People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). The trial court abuses
its discretion when its decision falls outside the range of principled outcomes. See People v
Breeding, 284 Mich App 471, 479; 772 NW2d 810 (2009). This Court reviews de novo question
of law, including “whether a rule of evidence or statute precludes admissibility of the evidence.”
Lukity, 460 Mich at 488. Further, this Court reviews de novo the constitutional question of whether
a defendant has been denied the right to present a defense. See People v King, 297 Mich App 465,
472; 824 NW2d 258 (2012).
For several reasons, the record before this Court is not sufficient for appellate review. First,
the trial court did not explain why it found that the rape-shield law applies to the conduct described
in the report. No one was charged or convicted of any crime arising from the conduct described
in the report. With that said, while the conduct described in the report was not particularly
extensive or invasive, the male was an adult, MG was a minor, and kissing and touching in an
intimate area of the body might well qualify as “sexual conduct” for purposes of the rape-shield
law. Cf. People v Owens, unpublished per curiam opinion of the Court of Appeals, issued January
13, 2004 (Docket No. 243888), p 2 (concluding that kissing and touching buttocks qualified as
“sexual conduct”).1 Given the scant record before this Court, it is prudent to remand for the trial
court to make findings on this preliminary question.
Second, even assuming arguendo that the rape-shield law applies, the record on appeal is
likewise not sufficient for this Court to determine whether the Confrontation Clause requires
admission of evidence of the alleged March 2020 incident. Generally speaking, the rape-shield
law prohibits the introduction of evidence of a victim’s sexual activity unrelated to the charged
incident, subject to some exceptions. The statute provides that evidence of a victim’s sexual
1
Although unpublished cases are not binding on this Court, they may be persuasive. See People
v Daniels, 311 Mich App 257, 268 n 4; 874 NW2d 732 (2015).
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conduct, including opinion and reputation evidence about the victim’s conduct, is not admissible
unless:
the judge finds that the following proposed evidence is material to a fact at issue in
the case and that its inflammatory or prejudicial nature does not outweigh its
probative value:
(a) Evidence of the victim’s past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the source or
origin of semen, pregnancy, or disease.
Neither (a) nor (b) applies to the alleged March 2020 incident, and therefore evidence of that
incident might well be subject to exclusion under the rape-shield law. This is not uncommon, as
our Supreme Court has recognized—“in the vast majority of cases, evidence of a rape victim’s
prior sexual conduct with others, and sexual reputation, when offered to prove that the conduct at
issue was consensual or for general impeachment is inadmissible.” People v Hackett, 421 Mich
338, 347-348; 365 NW2d 120 (1984).
The constitutional right of confrontation, however, will sometimes require the admissibility
of evidence otherwise subject to exclusion under the rape-shield law. “[I]n certain limited
situations, such evidence may not only be relevant, but its admission may be required to preserve
a defendant’s constitutional right to confrontation.” Id. at 348. Such evidence may, for example,
“be probative of a complainant’s ulterior motive for making a false charge.” Id.
To determine whether evidence of sexual activity should be admitted, the rape-shield law
sets forth a two-part analysis that trial courts are required to follow. MCL 750.520j(2). Our
Supreme Court has extended this two-part analysis beyond the statutory context and directly to the
constitutional right of confrontation. Hackett, 421 Mich at 349-350. When determining whether
such evidence is admissible—whether as an exception to the rape-shield law itself, or as required
by the constitutional right of confrontation—the trial court must: (1) evaluate the defendant’s offer
of proof for a “sufficient showing of relevancy”; and then (2) order “an in camera evidentiary
hearing to determine the admissibility of such evidence.” Id. at 350. This two-part process serves
both to streamline trial-court proceedings (not every proffer of proof warrants an evidentiary
hearing), and to create a sufficient record for appellate review. See id.
On appeal, defendant argues that the evidence involving the 18-year-old man is relevant to
MG’s motive to make a false allegation against defendant. Other than concluding that the report
is “highly relevant,” the trial court made no findings with regard to relevance. Based on a review
of the report alone, it is unclear how probative this incident is to MG’s motive to lie about the
charge against defendant. It appears that the man and MG kissed, and the man tried to unzip MG’s
pants, but then MG ended the conduct then and there. There are no allegations that she lied about
her age with the man or that she lied to her parents about the episode. She might have snuck out
of her residence, and this might be some evidence of her willingness to break a rule or, more
generally, commit a “wrong” of some type, to get attention from her father.
By the same token, based on a review of the report alone, there appears to be little that is
inflammatory or prejudicial about this episode as it pertains to MG. It appears that, when she was
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14 years old, she kissed someone who she thought was only two years older than her, and she
ended the encounter as soon as she became uncomfortable with it. A limited inquiry about MG
sneaking out to meet someone and stating that she wanted her father’s attention would not subject
her to the type of public harassment or humiliation that could otherwise deter a person from
reporting an incident of sexual assault. See Hackett, 421 Mich at 345, 350.
Compounding the uncertainty, it is not clear to this Court how the report would be used at
trial. Setting aside the matters of the rape-shield law, Confrontation Clause, relevancy, and
prejudice, there remains the matter of hearsay. Ordinarily, a police report is inadmissible hearsay
under MRE 803. See In re Forfeiture of a Quantity of Marijuana, 291 Mich App 243, 254; 805
NW2d 217 (2011); but see People v McDaniel, 469 Mich 409, 413; 670 NW2d 659 (2003)
(holding, pre-Crawford, that MRE 803 “allows admission of routine police reports, even though
they are hearsay, if those reports are made in a setting that is not adversarial to the defendant”). If
the report is to be used as substantive evidence and not just impeachment, then it remains for the
trial court to set forth the ground for such use. This leads to the third and final hurdle to appellate
review, the lack of an in camera hearing.
Although neither party has raised on appeal the matter of an in camera review, our Supreme
Court has made clear that this is a mandatory step in the two-step analysis. In People v Butler,
513 Mich 24, 32; 6 NW3d 54 (2024), our Supreme Court held “that the trial court erred by failing
to conduct an in camera evidentiary hearing before granting admission of the evidence.” The
Court explained that “[o]nce a sufficient offer of proof is made, the in camera evidentiary hearing
is not optional.” Id. Among other reasons, an in camera evidentiary hearing can serve as the basis
for the trial court to establish a sufficient record for appellate review of its evidentiary ruling.
We recognize that there might be more to the story than what this appellate record shows
today. Accordingly, rather than affirm or reverse the trial court’s decision, this Court will vacate
that decision and remand for further proceedings. This will provide the parties and the trial court
with an opportunity to revisit the matter and develop a sufficient record for appellate review on
the issues identified here and any other pertinent issues involving introduction of evidence about
the March 2020 incident.
Vacated and remanded for further proceedings consistent with this opinion. We retain
jurisdiction.
/s/ Brock A. Swartzle
/s/ Adrienne N. Young
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Court of Appeals, State of Michigan
ORDER
Brock A. Swartzle
PEOPLE OF MI V AIDEN MICHAEL WYSOCKI Presiding Judge
Docket No. 368411 Kirsten Frank Kelly
LC No. 2023-013163-FC Adrienne N. Young
Judges
For the reasons stated in the opinion issued with this order, we REMAND this case for
further proceedings. We retain jurisdiction. After the remand proceedings conclude, we will review the
decisions that the trial court made during those proceedings and consider any remaining issues in this
appeal. Any challenges to the trial court’s decisions on remand must be raised in this appeal. Therefore,
the parties and the trial court must not initiate a new appeal from an order entered on remand within the
scope of this appeal. The Clerk of the Court is directed to reject the initiation of a new appeal from such
an order.
Appellant must initiate the proceedings on remand within 21 days of the Clerk’s
certification of this order, and the trial court must prioritize this matter until the proceedings are concluded.
As stated in the accompanying opinion, because the record is not sufficient for our appellate review, the
Court vacates and remands for further proceedings. The proceedings on remand are limited to this issue.
The parties must serve copies of their filings in the trial court on this Court. Appellant
must file with this Court copies of all orders entered on remand within seven days of entry.
Appellant must ensure the transcript of all proceedings on remand is filed in the trial court
and this Court within 21 days after completion of the proceedings.
Appellant may file a supplemental brief addressing issues resulting from the remand
proceedings within 21 days after the entry of the trial court’s order deciding the matter or the filing of the
transcript of the remand proceedings in the trial court, whichever is later. If appellant does not file a
supplemental brief, appellee may file a supplemental brief within 21 days after appellant's time for filing
has run. A responsive brief may be filed within 14 days of service of the supplemental brief.
_______________________________
Presiding Judge
August 15, 2024